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Friday, September 25, 2009
Why PETA Shouldn't Blame Roger Goodell for Michael Vick's Return

This Sunday marks Michael Vick’s official return to the National Football League—an event that has been widely criticized by People for the Ethical Treatment of Animals (“PETA”), as well as some sports writers and doggie bloggers.

What those who criticize NFL Commissioner Roger Goodell for reinstating Vick fail to understand, however, is that the NFL may have ultimately lacked any real choice. Had the NFL not reinstated Vick, Vick could have potentially filed an antitrust lawsuit against the 32 NFL clubs for concertedly refusing to deal with him. Even though such a lawsuit would have likely failed in the Second and Seventh Circuits (due to the holdings respectively in the Clarett and American Needle cases), a lawsuit against the NFL clubs would have likely gotten to a jury in the Third, Sixth, Eighth and D.C. Circuits—all places where professional athletes have previously won large antitrust settlements.

As a quick background in antitrust law, Section 1 of the Sherman Act, in pertinent part, states that “[e]very contract, combination … or conspiracy in the restraint of trade or commerce … is declared to be illegal.” Although most Section 1 claims involve restraints of trade related to product markets, the Sherman Act likewise prohibits restraints in labor markets, as long as these restraints occur outside of the proper workings of a collective bargaining agreement (“non-statutory labor exemption”).

Courts in general determine whether a particular restraint violates Section 1 of the Sherman Act in three steps. First, courts will determine whether a particular restraint emerges from a “contract, combination or … conspiracy” among two or more parties. Next, they will determine whether the restraint yields a net anticompetitive effect to consumers. Finally, they will assess whether any antitrust exemption would negate the finding of liability.

With respect to finding a “contract, combination or … conspiracy,” most courts outside of the Seventh Circuit have found that any decision made by a league commissioner is tantamount to an agreement made among each of the individual club-owners, given that club-owners elect the commissioner to act on their behalf. Thus, outside of the Seventh Circuit, Goodell’s original decision to suspend Michael Vick would be viewed no differently under antitrust law than if the 32 NFL owners sat in a room and all agreed to suspend him. (Of course, this could change depending on the Supreme Court’s pending ruling in the case American Needle v. Nat’l Football League).

As to the net effects of indefinitely suspending a player, a court would likely find these effects to weigh heavily in the direction of being anticompetitive because suspending a player from a premier sports league reduces consumers’ ability to attend games that would feature the boycotted player, presuming a team would otherwise choose to play him. Although the 1961 Southern District of New York case Molinas v. Nat’l Basketball Association had upheld the NBA’s indefinite suspension of a player under antitrust law, that case involved a peculiar set of facts (a player gambling on games in which he played) and has since been called into doubt by the Supreme Court’s decision in U.S. v. National Society of Professional Engineers, which explained that defendants may not use a rationale based solely on public policy to offset liability for anticompetitive conduct.

Finally, with respect to potential affirmative defenses, courts in the Third, Sixth, Eighth, and D.C. Circuits would probably not find any of these defenses applicable. While it is true that most terms of good-faith collective bargaining agreements are exempt from antitrust scrutiny under the non-statutory labor exemption, the NFL Personal Conduct Policy (unlike the NFL drug policy and anti-gambling policy) does not appear explicitly in the NFL Collective Bargaining Agreement, thus likely making it fall outside the exemption in these circuits. In addition, even though a group of NFL players purportedly approved the NFL Personal Conduct Policy in 2007, their approval is likely irrelevant because the NFL Collective Bargaining Agreement requires any changes or modifications to be signed in writing. There is no public record of such writing.

Thus, even if NFL Commissioner Roger Goodell had not reinstated Michael Vick into the league, Vick may still have gone to court and litigated his way back. By simply reinstating Vick, the NFL avoided the headache of legal action, minimized the risk of having to pay damages to Vick, and resolved this matter without drawing added attention to Michael Vick’s past misconduct.

Can PETA really blame the NFL for that?


(Article originally posted on 9/25 at 10:05 A.M. on Above the Law; for more details on the legality of commissioner suspensions, see my article in the 2009 Catholic University Law Review: Are Commissioner Suspensions Really any Different from Illegal Group Boycotts).


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